R v DV - [2005] NSWCCA 319

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v DV [2005] NSWCCA 319

FILE NUMBER(S):
2005/996

HEARING DATE(S): 8 September 2005

JUDGMENT DATE: 08/09/2005

PARTIES:
Regina v DV

JUDGMENT OF: Grove J Hall J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3235

LOWER COURT JUDICIAL OFFICER: Sides DCJ

COUNSEL:
G. Rowling (Crown)
J. Stratton SC (Respondent)

SOLICITORS:
S. Kavanagh (DPP)
P. Murphy (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
OFFENDER RECEIVED LENIENCE FOR PROMISE OF ASSISTANCE IN PROSECUTING CO-OFFENDER
GIVES EVIDENCE AT TRIAL OF THAT CO-OFFENDER BUT RENEGES AT SECOND TRIAL
LONG DELAY NOT CONTRIBUTED TO BY RESPONDENT
CROWN APPEAL TO REMOVE BENEFIT EARLIER RECEIVED
SENTENCE CLOSE TO EXPIRY
CUSTODIAL ELEMENT FULLY SERVED
RETAINED DISCRETION TO DISMISS CROWN APPEAL EXERCISED

LEGISLATION CITED:
s 97(1) Crimes Act 1900
s 5DA Criminal Appeal Act 1912

DECISION:
CROWN APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/996
GROVE J
HALL J
SMART AJ
8 September 2005

REGINA v DV

Judgment

GROVE J: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912. That provision specifically empowers this Court to vary a sentence which has been reduced at first instance because the offender undertook to assist law enforcement authority, but when called upon to do so, wholly or partly failed to fulfil the undertaking. It is to be noted that the purpose of the provision is not to punish a non-cooperating offender, but to redress the situation where a reduction in sentence has been received for promised future assistance which is not, in the event, delivered.
The applicant was employee of the Abruzzi Sports Club Limited. Over a number of weeks he attended meetings in which a plan to rob the club was hatched. In the early hours of the morning of 6 August 2001, after the club had ceased trading, the respondent was on the premises with three other employees, a manager (Ms Harrison), a bar assistant (Mr Mangarelli) and a security guard (Mr Cugola).
The respondent opened a rear door and allowed three co-offenders whose features were disguised by the wearing of balaclavas, into the premises. The employees were threatened with pistols and some $55,000 in cash was taken from a safe. The intruders pretended that the respondent was, like the other employees, a victim of the robbery. Assaults were committed on the other employees.
In due course police investigations included interview of the respondent who was questioned about matters including various telephone contacts that he had made. The respondent did not initially reveal his participation in the offence but eventually did so, although he refrained from revealing the identities of his co-offenders at that point because of claimed fear. The learned sentencing judge (Sides DCJ) accepted that the respondent was, at this point, harbouring such fear. Nevertheless, the respondent eventually nominated his co-offenders and made a statement to police, including information in that regard. Two offenders (SY and KS) pleaded guilty to appropriate charges…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DV

Details

AGLC: R v DV [2005] NSWCCA 319
Case: [2005] NSWCCA 319
Decision Date: 8 September 2005

CaseChat Overview and Summary

In the matter of R v DV, the respondent, who was initially sentenced to imprisonment with the promise of leniency in exchange for providing evidence against a co-offender, appealed the decision to reduce his sentence. The Court of Appeal was tasked with determining whether the Crown's appeal to reduce the respondent's sentence was justified, given the respondent's reneging on his promise to provide evidence at the second trial, despite there being no delay attributable to him. The central issue before the court was whether the respondent's breach of his promise to testify against the co-offender warranted a reduction in his sentence, considering the passage of time and the fact that the respondent had already served the custodial portion of his sentence.

The Court of Appeal held that the respondent's breach of his promise to testify against the co-offender did not justify a reduction in his sentence. The court found that the delay in the proceedings was not attributable to the respondent, and the respondent had already served the custodial element of his sentence. Consequently, the court exercised its discretion not to reduce the sentence. The court emphasised that the respondent had received the benefit of the bargain at the time of sentencing, and the passage of time and the completion of the custodial sentence were factors that weighed against reducing the sentence. The court also noted that the respondent's breach of his promise did not warrant a reduction in his sentence, given that the delay was not his fault.

Given the court's reasoning and the fact that the respondent had already served the custodial portion of his sentence, the Court of Appeal dismissed the Crown's appeal to reduce the respondent's sentence. The court's decision was based on the principle that the respondent had already benefited from the leniency granted at the time of sentencing, and the passage of time and the completion of the custodial sentence were significant factors against reducing the sentence. The court's decision was also influenced by the fact that the delay in the proceedings was not attributable to the respondent.

In light of the above, the Court of Appeal dismissed the Crown's appeal to reduce the respondent's sentence. The court's decision was based on the principle that the respondent had already benefited from the leniency granted at the time of sentencing, and the passage of time and the completion of the custodial sentence were significant factors against reducing the sentence. The court's decision was also influenced by the fact that the delay in the proceedings was not attributable to the respondent. The respondent's breach of his promise to testify against the co-offender did not warrant a reduction in his sentence.

Orders